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"[I]n the Canadian view of fundamental justice, capital punishment is unjust and should be stopped."
Supreme Court of Canada, United States v. Burns.
Introduction: Two Roads Taken
On an otherwise ordinary day in the lives of Canada and the United States, diametrically opposing developments signaled the degree to which the two nations had parted company on a defining issue of criminal punishment and human rights. In a statement issued on November 25, 2005, senior Canadian cabinet members jointly announced Canada's accession to the Second Optional Protocol to the International Covenant on Civil and Political Rights, a treaty supporting the worldwide abolition of the death penalty. At the same moment that Canada was formally renouncing any use of the death penalty, U.S. politicians, prison officials, and protestors were gearing up for the thousandth execution since the resumption of capital punishment in 1977.
"Becoming a party to the treaty is part of Canada's effort to send a clear message on this important human rights issue," the Foreign Affairs Minister declared, while the Justice Minister noted that by acceding to the UN treaty "we not only formalize our longstanding support for the abolition of the death penalty, but take our place at the forefront of the international struggle toward abolition."1 The announcement went virtually unnoticed in the Canadian media, generating no controversy. In the U.S., meanwhile, approaching the milestone of a thousand executions offered a new vantage point on an old and acrimonious dispute. As one reporter noted, the focus of the death penalty debate in America "was once the question of whether it served as a deterrent to crime. Today, the argument is more on whether the government can be trusted not to execute an innocent person."2
Over the past two decades in particular, the looming presence of the death penalty in the United States has exerted a powerful influence on Canadian law, policymaking, and public attitudes. Canada's responses have in turn affected U.S. policy and practice in capital cases. But how did these closely-intertwined societies come to differ so profoundly regarding the death penalty? The issue has triggered significant irritants and adjustments to cross-border relations, in fields as diverse as extradition procedures, consular rights, refugee determinations, and the prosecution of "enemy combatants." What impact do...